Right now, the battle is in the courts, but it will certainly move to Congress. Just last fall, we had the upperhand against the FBI, forcing them to back off their campaign for legislation requiring backdoors into devices. In fact, in a creepy bit of foreshadowing, Robert Litt, the National Intelligence General Counsel sent an email to his colleagues last August saying, “the legislative environment is very hostile today, it could turn in the event of a terrorist attack or criminal event where strong encryption can be shown to have hindered law enforcement.”

Already, some members of Congress are using this opportunity to announce that they will introduce legislation to force companies to comply with orders to open phones and devices.

Background

Why shouldn’t the government have a “backdoor” into the devices of terrorists?

Strong encryption is the backbone of cybersecurity, and providing a backdoor, even a secret one, weakens encryption, making it easier for the “bad guys” to access our devices and networks. Intelligence Chief James Clapper told the Senate Armed Services Committee that cyber attacks are the greatest security threat confronting the nation. Encryption is the first and last line of defense against hacking.

While the FBI argues that encryption backdoors are crucial to fighting terrorism, they have also admitted that terror organizations like ISIS will always have access to encrypted devices made outside of the US, not subject to any law Congress might pass to mandate backdoors. Instead, the FBI wants to be able to get into the phones of low-level drug dealers and other criminal suspects. Backdoors are another counterterrorism tool the FBI can turn against communities of color that will result in ever more incarceration.

Encryption, of course, protects important personal information, but also empowers people to speak freely and to organize for political change by safeguarding their personal privacy. The Supreme Court has long recognized that privacy is essential to dissent. Not only has the FBI shown a tendency to spy on social movements, and would be expected to use encryption backdoors to keep tabs on leaders and participants, as they have used other tools in the past.